## Facts

- Mishara Construction Company, Inc. was the general contractor on a public housing project (Rose Manor) in Pittsfield, Massachusetts.
- In September 1966, Mishara and Transit-Mixed Concrete Corp. agreed Transit would supply all ready-mixed concrete needed for the project at \$13.25 per cubic yard, with deliveries “as required” by Mishara.
- The agreement was memorialized in a September 21, 1966 purchase order identifying the project and providing that delivery would be made “as required.”
- Deliveries proceeded satisfactorily until April 1967, when a labor dispute disrupted work; work resumed June 15, 1967, but a picket line remained at the site until the project’s completion in 1969.
- During the picketing period, Transit made few deliveries despite Mishara’s repeated requests.
- After notice to Transit, Mishara obtained the remaining concrete from other suppliers.
- Mishara sought damages for the higher cost of replacement concrete and expenses incurred in finding alternate supply.

## Issues

1. Whether a contract to supply goods “as required” on a specified construction project is sufficiently definite in quantity and duration to be enforceable under the UCC.
2. Whether the trial judge erred in refusing an instruction that the requirements contract was not terminable until Mishara received all concrete required for the project.
3. Whether the judge should have instructed that Transit breached the contract as a matter of law.
4. Whether Transit’s nonperformance could be excused under UCC § 2-615 (commercial impracticability/impossibility) based on labor dispute conditions and a picket line at the delivery site.
5. Whether the applicability of § 2-615 on these facts was for the jury.

## Decision

- The Supreme Judicial Court overruled Mishara’s exceptions and left standing the defense verdict for Transit.
- The court treated the agreement as a UCC-governed requirements contract and held that “as required” on a specific project can provide adequate standards for quantity and duration.
- The judge was not required to give Mishara’s requested instructions in the precise language proposed where the charge, taken as a whole, fairly presented the governing law.
- The refusal to instruct that the contract was “not terminable” until all project requirements were met was not reversible error, even if the requested statement was legally correct, because it was unnecessary and could mislead given the disputed excuse defense.
- The judge properly declined to instruct that Transit breached as a matter of law because the central disputed question was whether Transit was excused under UCC § 2-615.
- Whether the picket line and labor conditions made performance commercially impracticable within § 2-615 was a factual question appropriately left to the jury.

## Legal Principles

- A requirements contract under the UCC may be enforceable even without a fixed numeric quantity or calendar end date if the parties’ obligation is tied to objective requirements of a specified project.
- A trial judge need not adopt a party’s requested wording for instructions if the charge adequately states the applicable legal rules.
- Under UCC § 2-615, a seller’s nonperformance may be excused when performance becomes commercially impracticable due to a contingency whose nonoccurrence was a basic assumption of the contract, with foreseeability and risk allocation central to the analysis.
- Whether asserted labor-related obstacles (including picket lines at a delivery site) rise to the level of commercial impracticability is commonly a fact question for the jury on the particular circumstances.

## Conclusion

The court sustained a verdict for the supplier, holding that a project-based “as required” concrete supply agreement was sufficiently definite under the UCC and that the supplier’s claimed excuse for nonperformance under UCC § 2-615, based on labor picketing at the site, presented a jury question rather than a basis for a directed breach instruction.


Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 310 N.E.2d 363 (1974)